Ford v. Umatilla County

• Decision Date: 25 June 1887
• Citation: 15 Or. 313,16 P. 33
• Parties: FORD v. UMATILLA CO.
• Court: Oregon Supreme Court

16 P. 33

15 Or. 313

FORD v. UMATILLA CO.

Supreme Court of Oregon

June 25, 1887

December 14, 1887

Appeal from circuit court, Umatilla county.

Robert G. Ford, plaintiff, sued the county of Umatilla, defendant for injuries to certain personal property by the breaking through of a bridge. Judgment for the plaintiff, $700, and defendant appealed.

L.B Cox, for appellant.

J.J Balleray, for respondent.

BY THE COURT.

The respondent commenced an action in said circuit court against the appellant to recover damages for injury to certain personal property. He alleged in his complaint that on the thirteenth day of October, 1884, he was traveling through said county, transporting a quantity of household goods and stock of cattle and horses, and that while his team of four horses and a wagon, with a load of household goods merchandise, and library, were being driven over and across the county bridge over Butter creek, in said county, at the Ewing place, and the respondent was unaware of the bridge being defective or unsafe, and without fault or negligence on his part, it broke and fell, precipitating the team of horses and wagon, and load of goods, merchandise, and library, into said creek; that two of the horses of the team were killed thereby, and the other two horses, the wagon, household goods, merchandise, and library were badly damaged; that said bridge was at said time a county bridge of said county, and was, and for a long time prior thereto had been, in an unsafe and insecure condition, and without proper protection or notice to citizens or travelers against accident. The respondent claimed general damages in the sum of $770, and $100 as special damages, on account of expenses incurred in consequence of the injury. The appellant denied, in its answer, that the bridge was a county bridge of said county; denied that respondent's team was lawfully passing over the same at the time of the occurrence, or that the respondent was unaware that the bridge was defective or unsafe, or was without fault or negligence, or that the horses were killed and other property damaged by reason of the accident alleged in the complaint; denied any knowledge or information sufficient to form a belief as to the unsafe and insecure condition of the bridge at the time of the accident, or that it was without proper protection and notice to citizens and travelers against accident; and denied all the other material allegations of the complaint. The appellant also alleged, in its answer, that the bridge in question was a private bridge, erected by one H.D. Barton across Butter creek, some rods south of the county road crossing said creek; that said county road crossed the creek at a ford; and that at the time of the accident the creek was nearly dry, and easily fordable; that the county road at and near the ford was a plain, traveled road; that the respondent left it without cause or reason; that, before his team was driven onto the bridge, he was warned that it was unsafe, but that he was intoxicated at the time, and recklessly caused and directed the team to be driven upon it; that the defect in the bridge was the internal decay of the stringers, which was a latent defect. The new matter in the answer was controverted in a reply filed on the part of the respondent, and the case thereupon was at issue for trial.

The respondent's counsel filed a motion for a change of the place of trial, upon the grounds that the inhabitants of the county were so prejudiced against the respondent that he could not expect to obtain an impartial trial of the cause. The appellant opposed the motion, and the court overruled it. Subsequently the appellant's counsel filed a similar motion, upon the grounds that the judge of the court was so prejudiced against the appellant that it could not expect an impartial trial, which the respondent opposed, and the court also overruled. Thereafter the case came on for trial before a jury.

In impaneling the jury, the respondent's counsel claimed the right to challenge those they saw fit who were tax-payers, on the grounds of implied bias. Accordingly, a number who were called as jurors were challenged upon said grounds, and the court sustained the challenges; to which the appellant's counsel saved exceptions. After the court had made such ruling the appellant's counsel interposed a challenge to one T.B. Morgan, who was called as a juror, upon the same grounds. The respondent's counsel resisted the challenge, and the court overruled it; to which the appellant's counsel excepted, and then challenged the juror peremptorily. Another juror called (R. Sargeant) was asked by the appellant's counsel if there was any prejudice or ill feeling then existing in his mind against the present county court of Umatilla county? Also, if there was any such prejudice or ill feeling growing out of the transaction in question? Which several questions were objected to by the respondent's counsel, and the objections severally sustained by the court and exceptions duly taken to the rulings.

After the impaneling of the jury was completed, the parties proceeded to introduce their evidence on both sides. A number of objections were made and exceptions taken to the rulings of the court thereon. We have examined the various exceptions so taken, and are of the opinion that no error was committed in respect thereto affecting the substantial rights of the appellant. The testimony being closed, the court gave a number of instructions to the jury, to which exceptions were taken upon the part of the appellant; also, a number of exceptions were taken by the appellant's counsel to the refusal upon the part of the court to give certain instructions as asked by said counsel. The instructions asked, and those given, that bore upon the merits of the case, are the following: The appellant's counsel asked the court to instruct the jury that, "before any recovery could be had in the action, they must find that the bridge in question was either a public bridge of Umatilla county in fact or was knowingly recognized as a county structure by the officials of said county at the time of the accident." This instruction the court gave as asked, except that the court omitted the words "at the time of the accident," and also left out the word "any" between the words "before" and "recovery." The court also instructed the jury as follows: "If you find that the bridge in question was of the character described in the foregoing instruction, before any recovery could be had in this action, you must find that the proper authorities of the county had been notified for a reasonable time prior to the accident of the defective condition of the bridge, or that it had been openly and notoriously unsafe to such an extent as to convey notice of its defective condition for a reasonable time prior to the accident. By a reasonable time, it is meant such time as, by the exercise of diligence, would have allowed of its repair, or the prevention of public use." "If you find that the breach in the bridge was the result of an internal decay of its supports, not perceptible to the observation, the defendant is not liable for damages resulting from such breach, unless actual notice of the unsound condition of such supports had been given to the proper officers of the county for a reasonable time before the occurrence of the accident." These instructions were certainly as fair as the appellant had a right to claim. We have always doubted the soundness of the rule which allowed a recovery against a county for such an injury, and have never been able to discover any such relation between a county and its officers as that of master and servant, or principal and agent, nor how the doctrine of respondeat superior could be made applicable; but it was established in this state, and we had to follow it until the legislature saw proper to change it, which it seems to have done at the last session thereof. Sess.Laws 1887, p. 45. The act, however, does not affect the judgment herein.

The appellant's counsel also asked the court to instruct the jury that, before any recovery could be had, the plaintiff must have submitted to them a case clear of contributory negligence on his part; that the injury must have resulted exclusively from the negligence of the defendant, before it could be called upon to respond in damages therefor. This proposition would seem to imply that the plaintiff was required to establish that he was not guilty of negligence in the affair, which is not the rule. He was obliged to show that the injury was received in consequence of the defendant's negligence, and would not then be entitled to recover if his proof showed that he was also guilty of negligence, which contributed to the injury. In other words, he had to prove that the defendant's negligence occasioned the injury by evidence that did not implicate himself as being guilty of negligence in the affair, contributing to the result. It is immaterial whether a plaintiff in such a case is, as a matter of fact, guilty of negligence or not, unless the evidence, upon one side or the other, shows it. If it does not appear from the evidence adduced by the plaintiff, then the defendant must establish it. It primarily belongs to the defendant to prove it as a defense, though he may avail himself of the benefit of evidence tending to prove it, appearing from the plaintiff's own showing. The court had already, in effect, instructed the jury that the respondent was bound to exercise such care as a man of ordinary prudence would use ordinarily, while driving along a public highway, or over a county bridge. That is clearly inferable from the twelfth instruction given to the jury; and this, we think, is all that could reasonably have been asked. The...